Can not restricting human rights violate them?
We are used to conceiving human rights as freedoms of the individual from government intervention. COVID-19 might put this assumption to the test and show that the opposite might also be true.
The outbreak of COVID-19 has presented humankind with a plethora of novel questions, requiring answers nobody was ready to give. We hardly have the language to express what we are witnessing today. We can call it a pandemic, but is this a term we are able to associate with familiar content? Or are we more comfortable comparing it to a war-like scenario, as is commonly being done – a true World War of humankind against the unknown, claiming its victims at an excruciating pace? Such is its remarkability that wars have been paused, their belligerent parties obedient, for once, to the UN Secretary General’s call for a stop to hostilities.
The impact of this worldwide crisis is yet to be understood, with repercussions that span from rethinking national healthcare policies to facing the threats caused by economic catastrophe. While predictions are tentatively being made about the trends and outcomes of the virus in the long run, the governments’ slow reaction raises eyebrows and appears the most hazardous and irresponsible response in these circumstances.
An urge to act?
While COVID-19 was progressively hitting countries, manifesting its unexpected virality, were the governments of “safe” States not supposed to realise the danger, brace themselves and take preventive measures, rather than waiting for it to become an emergency? Or, when the emergency did break out, was the endorsement of “herd immunity” theories and lax mitigating measures not reckless indecisiveness?
A balance between contrasting values
The dilemma at its kernel requires a balance of conflicting interests. As scientists scramble to create an effective vaccine, measures like isolation, social distancing and quarantine are, indeed, the most viable solutions, entailing as they do a denial of our most fundamental human rights. Imposing restrictive regimes, before an emergency is declared to justify them, is – quite rightfully so – usually not well received by the citizenry.
At the same time, international human rights law does allow for derogations as lawful responses to emergencies. Article 15 of the European Convention of Human Rights (ECHR) leaves States parties the agency to “take measures derogating from its obligations under [the] Convention to the extent strictly required by the exigencies of the situation”, enshrining a sort of general “safety valve” that is also specified in the single provisions. The right to respect for private and family life (Article 8) and the freedom of assembly and association (Article 11) shall not be subject to interference, unless this “is in accordance with the law and is necessary in a democratic society in the interests of national security or public safety”.
The same rationale can be found in Articles 4 of both the International Covenant on Civil and Political Rights (ICCPR) and of the International Covenant on Economic, Social and Cultural Rights (ICESCR). The ICCPR, more specifically, authorises derogating measures “in time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed”.
How is this balance to be struck in practice? It might not be redundant to recall that while these rights admit exceptional, limited derogations, the right to life never does (Article 15(2) ECHR, Article 4(2) ICCPR). Its nature as the “source” of all other human rights places it in a position of primacy that needs to be safeguarded and defended at all times.
It should also be recalled that international human rights law increasingly recognises “due diligence” as one of its guiding principles, requiring States to not only guarantee their citizens the enjoyment of rights but, under certain circumstances, adopt active measures to this end. In the case at hand, the unresponsiveness demonstrated by governments in the emergence of the virus seems to clash with this duty.
Checks and balances
Derogations are indeed a dangerous beast. Once an exception is made, it might be hard to identify the limit and not to be “carried away” by an excess of zeal, with lasting consequences extending beyond the timeframe of the crisis. The deployment of surveillance technology to track people’s movements is one instance of a powerful and dangerous tool in the hands of governments, whose dystopian abuses one might never want to address.
But the international community, and an empowered citizenry, can provide the necessary checks and balances against these risks. Inter-State relations based on mutual respect can provide for an effective safeguard against abuses, one that is based on reputation rather than on sanction. On the other hand, a population can be called upon to make a collective effort for the protection of its own rights. In this way, it can obtain more effective results, while remaining the ultimate guardian in holding its leaders accountable.
In light of these considerations, arguably, a sense of cooperation, solidarity and shared responsibility among States should have meant a faster response, one that has respect for the principles of human rights and, even, in their more effective fulfilment.
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